Telangana High Court
Chowrala Santosh Kumar And 4 Others vs Akula Shobha Rani And 10 Others on 13 April, 2023
Author: P.Naveen Rao
Bench: P.Naveen Rao
HON'BLE SRI JUSTICE P.NAVEEN RAO
CIVIL REVISION PETITION NO.833 OF 2023
Date: 13.04.2023
Between:
Chowrala Santosh Kumar, s/o. late Ch.Anand Rao,
Aged about 41 years, Occu: Private Service,
R/o.H.No.21-3-366/A, Charmahal, Petlaberuj,
Hyderabad and others.
.... Petitioners/petitioners/
plaintiffs
and
Akula shobha Rani, w/o. late Akula Gyaneshwar,
Aged about 52 years, occu:Household,
r/o.H.No.13-1-665, Near Police Station Mangalhat,
Hyderabad and others.
.... Respondents/respondents/
Defendants
This Court made the following:
PNR,J
CRP No.833 of 2023
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HON'BLE SRI JUSTICE P.NAVEEN RAO
CIVIL REVISION PETITION NO.833 OF 2023
ORDER :
Heard Sri G. Anandam, learned counsel for the petitioners and Sri Azhar Ali Khan, learned counsel for the respondents. Plaintiffs are petitioners in this revision. The parties are referred to as arrayed in the plaint.
2. O.S.No.471 of 2016 is filed in the Court of XVII Additional Senior Civil Judge, City Civil Court, Hyderabad praying to grant decree for partition.
3. The 1st plaintiff stood as P.W.1. He filed affidavit in lieu of chief examination. During the course of his cross-examination he was confronted with some photographs marked as Ex.B.1 and B.2 and a document written in Telugu on a white paper called as deed of relinquishment, marked as Ex.B.4.
4. Plaintiffs filed I.A.No.95 of 2023 under Order XIII Rules 3 and 6 of Code of Civil Procedure (C.P.C), seeking to De-exhibit the said documents. The trial Court dismissed the said application by order dated 17.02.2023, impugned herein.
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5. Learned counsel for plaintiffs contended that Exs.B.1 and B.2 are photographs. They are not supported by C.D of original photographs and therefore, inadmissible in evidence.
6. He would submit that Ex.B.4 document is neither stamped nor registered. A deed of relinquishment is a compulsorily registerable document and in the absence of proper stamp duty and registration, it is inadmissible in evidence. For want of proper stamp duty and registration they are inadmissible in evidence as per Section 35 of the Indian Stamp Act, 1899 (for short 'the Stamp Act') and Section 17 of the Indian Registration Act, 1908 (for short 'the Registration Act'). Further, existence of these documents was not disclosed in the written statement and were not shown in the list of documents enclosed to the written statement.
7. He would contend that though objection was raised before advocate commissioner on admissibility of Ex.B.4, he has not recorded the objection. He would contend that the trial Court erred in observing that once a document is marked it cannot be de-exhibited on the ground of in sufficiency of stamp duty.
8. He would submit that objection on admissibility of a document hit by Section 35 of the Stamp Act and Section 17 of PNR,J CRP No.833 of 2023 -4- the Registration Act can be raised at any time, including in a revision.
9. Learned counsel relied on Boggavarapu Narasimhulu Vs Sriram Ramanaiah and others1.
10. Per contra, according to learned counsel for defendants, plaintiffs have not raised objection when documents were marked and when they were confronted in the cross- examination of P.W.1. Once the documents are marked after the signature on the document is admitted, it cannot be de- exhibited. He would further submit that when confronted, the witness identified the signatures on the document.
11. What is urged herein is contrary to the depositions of plaintiffs. After the cross-examination matter under went several adjournments and plaintiffs' evidence was closed, where as, the instant application was filed at the stage of recording of evidence of defendants.
12. Learned counsel relied on the decision in Javer Chand Vs Pukhraj Surana2 and Shyamal Kumar Roy Vs Sushil Kumar Agarwal3.
1 2014 (1) ALT 577 (S.B) 2 1961 AIR (SC) 1655 3 (2006) 11 SCC 331 PNR,J CRP No.833 of 2023 -5-
13. According to plaintiffs their maternal grandfather Akula Mallappa was the absolute owner of the suit schedule property. He was blessed with six sons and four daughters. The plaintiffs and 11th defendant are grand children of Akula Mallappa. They are children of late Prabhavati, daughter of Akula Mallappa. According to plaintiffs the suit schedule property is a joint family property and liable for partition.
14. The defendants 1 to 8 contested the said claim, According to them, the mother of plaintiffs relinquished her claim in the suit schedule property by receiving Rs.50,000/- . In support of their claim they relied on Ex.B.4 document.
15. Exs.B.1 and B.2 are photographs of suit schedule property. Ex.B.3 is the certified copy of deed of partition and Ex.B.4 is a Telugu written document in the form of a receipt of money, a deed of relinquishment. In the cross-examination of P.W.1, when he was confronted with Ex.B.4, the witness identified one of the signatures as belonging to his mother. As per this document mother of P.W.1 along with two other sisters received 50,000/- each from their father Akula Mallappa and given up their claim to the suit schedule property.
16. It is not in dispute that neither the witness nor their counsel objected to marking of the document Ex.B.4.
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17. The question for consideration is whether the defendants can raise objection on admissibility of the document Ex.B.4 and pray to de-exhibit.
18. In R.V.E. Venkatachala Gounder Vs Arulmigu Vishweswaraswami and V.P.Temple and another4, the Hon'ble Supreme Court held that objection as to admissibility of document is of two classes. Firstly the document sought to be proved is itself inadmissible in evidence; and second that though there is no objection on admissibility of the document in evidence but is directed towards mode of proof alleging the same to be irregular or insufficient. Hon'ble Supreme Court held that in the second type of cases the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit the objection cannot be allowed to be raised and failure to raise a prompt and timely objection amounts to waiver. It is held that in the first case acquiescence would be no bar to raising the objection in superior Court. The Full Bench of this Court in the Land Acquisition Officer, Vijayawada Thermal Station Vs Nutalapati Venkata Rao5 echoed the same principle. Following these 4 AIR 2003 SC 4548 5 1990 (3) ALT 3057 PNR,J CRP No.833 of 2023 -7- decisions learned Single Judge of this Court in Boggavarapu Narasimhulu, upheld the objection on admissibility of a document at revisional stage.
19. Ex.B.4 document was written on a white paper and signed by three daughters of Akula Mallappa acknowledged receipt of 50,000/- each and recognize assignment of suit schedule property to their brothers. P.W.1 acknowledges signature of his mother. This document was written on 11.03.1992. Ex.B.4 is kind of a family settlement concerning suit schedule property. It is compulsorily registerable document. Since it is not registered, it is not admissible in evidence.
20. In view of the law laid down by the Hon'ble Supreme Court in R.V.E.Venkatachala Gounder and Full Bench in the Land Acquisition Officer Vijayawada Thermal Station, it is permissible to raise objection on admissibility of Ex.B.4 at any stage even though no objection was raised by the plaintiffs at the stage of marking of the document as said document is compulsorily registerable and as it was not registered under the Indian Registration Act, it is not admissible in evidence. The trial Court erred in not appreciating this aspect.
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21. The Order of the XVII Additional Senior Civil Judge, City Civil Court, Hyderabad, dated 17.02.2023 in I.A.No.95 of 2023 in O.S.No.471 of 2016, is set aside and Civil Revision Petition is allowed. It is held that Ex.B.4 is inadmissible in evidence. Pending miscellaneous applications, if any, shall stand closed.
___________________ P.NAVEEN RAO,J Date :13.04.2023 Rds PNR,J CRP No.833 of 2023 -9- HON'BLE SRI JUSTICE P.NAVEEN RAO CIVIL REVISION PETITION NO.833 OF 2023 Date: 13.04.2023 rds